[Cite as Wintrow v. Baxter-Wintrow,

.]

STATE OF OHIO ) IN THE COURT OF APPEALS )ss: NINTH JUDICIAL DISTRICT COUNTY OF SUMMIT )

DON WINTROW C.A. No. 26439

Appellee

v. APPEAL FROM JUDGMENT ENTERED IN THE TRACIE BAXTER-WINTROW COURT OF COMMON PLEAS COUNTY OF SUMMIT, OHIO Appellant CASE No. 2005-09-3383

DECISION AND JOURNAL ENTRY

Dated: March 13, 2013

CARR, Judge.

{¶1} Appellant Tracie Baxter-Wintrow appeals the judgment of the Summit County

Court of Common Pleas, Domestic Relations Division. This Court reverses and remands.

I.

{¶2} Don Wintrow and Tracie Baxter-Wintrow were divorced in 2007. Don was

named as the residential parent and legal custodian of the parties’ two children, and Tracie was

granted supervised visitation for three hours every Sunday. Soon thereafter, Tracie began

periodically filing motions to reallocate parental rights and responsibilities, to modify visitation,

and to hold Don in contempt.

{¶3} In February 2011, Tracie again filed a motion to modify visitation. In May 2011,

the magistrate noted that the parties reached an agreement during the April 19, 2011 hearing on

the motion, and that a further evidentiary hearing would be held in August 2011. After the

August hearing, the magistrate issued a decision in which he increased Tracie’s parenting time, 2

ordering visitation every Wednesday at 3:00 p.m. until Thursday morning and on alternate

weekends from 3:00 p.m. Friday until Monday morning. Don objected to the additional

overnight visits on Wednesdays and Sundays.

{¶4} The trial court sustained Don’s objections and reduced Tracie’s parenting time to

alternate Wednesdays from after school until 8:00 p.m. and alternate weekends from after school

on Friday until 6:00 p.m. on Sunday. Three days later, Tracie filed a motion to modify visitation,

which included a notice that the matter would be heard on January 9, 2012. She also filed a

motion for temporary orders and a motion to adopt a shared parenting plan that she appended to

the motion. She submitted documentary evidence, including affidavits, in support of her motion

for temporary orders. On December 9, 2011, the domestic relations court judge issued an order

denying Tracie’s motion for temporary orders, but noted that her motion to modify visitation

would be heard by the magistrate on January 9, 2012. The order did not mention Tracie’s

pending motion to adopt a shared parenting plan. On December 13, 2011, Don filed a brief in

opposition to Tracie’s motion to modify parenting time and a motion for sanctions against Tracie

based on her alleged frivolous filings. Don argued that Tracie filed her motions a mere three

days after the trial court sustained his objections and reduced Tracie’s parenting time. He further

argued that Tracie could not demonstrate a change of circumstances during that three-day period

necessary to support a modification of parenting time.

{¶5} On January 9, 2012, the parties appeared before the magistrate for the hearing

scheduled on Tracie’s motions to modify parenting time and to adopt a shared parenting plan. At

the hearing, however, the magistrate seemed resistant to considering the issues before him. The

magistrate noted his long history with Tracie and his desire to act cautiously. He further

alternated between informing the parties that Tracie did not have to show a change in 3

circumstances and that she did have to show a change in circumstances. Moreover, the

magistrate informed Tracie that he had already ordered the parenting time she was requesting, so

there was nothing more to be done. When she reminded him that the trial court had sustained

Don’s objections and reduced her visitation, the magistrate conceded that the judge modified the

parenting time orders he had made. The magistrate then informed Tracie that he was not willing

to enter new orders in the belief that the judge had already resolved the issue. After it appeared

that the magistrate would not be considering Tracie’s pending motions, Don’s attorney asserted

on the record that they were noticed for a hearing on those motions and asked when they would

be heard. The magistrate then explained to Tracie the difference between shared parenting (“a

concept based on a plan”) and equal parenting time (“a schedule”), and informed her that she had

already received the modification of visitation that she requested even though the judge later

denied her request. He cautioned Tracie that she could not continue to file motions merely

because she did not get the result she wanted. Don’s attorney again asserted on the record that

the parties had received notice that Tracie’s motion for modification of parenting time would be

heard that day. Nevertheless, the magistrate asserted that after the judge issued his ruling on

Don’s objections in December 2011 (three days before Tracie filed the instant motions), all

parenting time issues were fully resolved. Don’s attorney then asked the magistrate about a

motion for sanctions against Tracie that the court directed her to file in lieu of a previously filed

motion for attorney fees. The transcript of the proceedings ends in mid-sentence during Don’s

attorney’s inquiry.

{¶6} On January 31, 2012, the magistrate issued a decision purportedly “[b]ased upon

the testimony, evidence, and statements of counsel” during November 4, 2011, and January 19,

2012 hearings on Tracie’s motions for contempt (filed August 25, 2011, and based on 4

interference with visitation) and to modify parenting time (filed December 5, 2011). Although

the contempt motion was noticed for hearing on November 4, 2011, there is no transcript of

those proceedings in the record. In regard to that motion, the magistrate found that Tracie filed

the contempt motion while Don’s objections to the order she sought to have enforced were

pending. The record indicates, however, that Tracie filed the contempt motion four weeks before

the magistrate issued his decision in which he increased her parenting time and five weeks before

Don filed his objections. Moreover, after Don filed his objections, the judge granted Tracie’s

motion for an interim order maintaining parenting time as ordered by the magistrate pending

ruling on the objections.

{¶7} In addressing Tracie’s motion to modify parenting time, the magistrate found that,

because Tracie filed her motion a few days after the trial court sustained Don’s objections and

reduced Tracie’s parenting time, “[n]ot enough time has passed to see how the current orders

work out and to even consider [Tracie’s] motion as filed would be an open invitation for any

litigant to file a new motion every time that party received an adverse ruling.” (Emphasis

added). The magistrate then inexplicably denied all of Don’s outstanding motions and taxed

costs to Don. The same day, the domestic relations court adopted the magistrate’s decision and,

presumably correcting a typographical error, ordered that all of Tracie’s outstanding motions

were denied, although the judge also taxed costs to Don.

{¶8} Tracie filed timely objections to the magistrate’s decision in which she argued, in

part, that she was denied due process when she was prevented from presenting evidence in

support of her motions. Don did not respond to Tracie’s objections. In ruling on the objections,

the trial court found that the magistrate’s decision was supported by the record and it, therefore,

denied Tracie’s motions. Tracie filed a timely appeal in which she raises five assignments of 5

error for our review. We address the third and fifth assignments of error first as they implicate

the same issue and are dispositive of the appeal.

II.

ASSIGNMENT OF ERROR III

THE TRIAL COURT ERRED BY DENYING [TRACIE] DUE PROCESS OF LAW BY FAILING TO CONDUCT AN IN CAMERA INTERVIEW AND BY REFUSING TO ALLOW HER AN OPPORTUNITY TO PRESENT EVIDENCE AND TESTIMONY.

ASSIGNMENT OF ERROR V

THE TRIAL COURT ERRED BY FAILING TO CONSIDER [TRACIE’S] MOTION TO ADOPT A SHARED PARENTING PLAN.

{¶9} Tracie argues that the trial court denied her due process by refusing to allow her

to present any evidence at the hearing on January 9, 2012, regarding her motion to modify

parenting time and her motion to adopt a shared parenting plan. This Court agrees.

{¶10} This Court generally reviews a trial court’s action with respect to a magistrate’s

decision for an abuse of discretion. Fields v. Cloyd, 9th Dist. No. 24150,

.

“In so doing, we consider the trial court’s action with reference to the nature of the underlying

matter.” Tabatabai v. Tabatabai, 9th Dist. No. 08CA0049-M,

, ¶ 18. Trial

courts have broad discretion in their allocation of parental rights and responsibilities. Graves v.

Graves, 9th Dist. No. 3242-M,

, ¶ 31, citing Miller v. Miller,

(1988). “[A] trial court’s determination in custody matters ‘should be accorded the utmost

respect’ because ‘[t]he knowledge a trial court gains through observing the witnesses and the

parties in a custody proceeding cannot be conveyed to a reviewing court by a printed record.’”

Baxter v. Baxter, 9th Dist. No. 10CA009927,

, quoting

.

Accordingly, “[c]ustody determinations will not be reversed on appeal absent an abuse of 6

discretion.”

. An abuse of discretion implies that “the court’s attitude is

unreasonable, arbitrary or unconscionable.” Blakemore v. Blakemore,

(1983).

{¶11} If, however, the issue implicates an issue of law, this Court reviews those matters

de novo. This Court recognizes that whether the trial court has complied with due process

mandates implicates an issue of law that we review de novo. Butler v. Butler, 9th Dist. No.

22087,

.

{¶12} Even in the context of domestic relations matters:

“Due process of law involves the essential rights of notice, hearing and the opportunity to be heard before a competent tribunal. State v. Edwards,

(1952). ‘Due course of law’ as guaranteed by Section 16, Article I of the Ohio Constitution is virtually the same as the ‘due process’ clause of the Fourteenth Amendment, United States Constitution. In re Hua,

(1980).”

Yousif-Thacker v. Yousif, 9th Dist. No. 00CA007562,

(Jan. 10, 2001).

{¶13} In this case, Tracie filed a motion to modify parenting time and a motion to adopt

a shared parenting plan. She used a form motion which included a notice of hearing provision.

She obtained a hearing date and time for her motions. In the interim, she sought temporary

orders until her motions could be heard. Although the trial court denied her motion for

temporary orders, it noted that her motions remained pending and would be heard by the

magistrate on January 9, 2012. All parties appeared before the magistrate on the scheduled date

and time for a hearing on the motions to modify parenting time and to adopt a shared parenting

plan. Nevertheless, the magistrate evaded consideration of Tracie’s motions. The magistrate

first asserted that Tracie had already been accorded the relief she sought, so there was nothing

more for the court to do. When he was reminded that the trial court rejected the magistrate’s

decision and modified the parenting time order, he declined to consider Tracie’s instant pending 7

motion to modify based upon his understanding that the judge had fully resolved the issue of

parenting time. The trial court, however, more recently ordered that Tracie’s motion would be

heard on January 9, 2012. Most significant, however, was the magistrate’s “finding of fact” in

his decision that not enough time had passed for him “to even consider [Tracie’s] motion * * *.”

Therefore, without hearing any evidence, he denied all of her outstanding motions.

{¶14} In addressing Tracie’s objections, the trial court concluded that the record

supported the magistrate’s decision. However, the record clearly demonstrates that the parties

were noticed for a hearing on Tracie’s motions and that the domestic relations court judge later

reiterated that her motions would be heard by the magistrate on January 9, 2012. The transcript

of the hearing on January 9, 2012, indicates that the magistrate misunderstand the procedural

posture of the case and did not hear any evidence relating to Tracie’s motion to modify her

parenting time or her motion to adopt a shared parenting plan. Moreover, the magistrate

admitted in his decision that he did not consider the merits of Tracie’s motions for fear that such

consideration would encourage other litigants to file renewed motions every time they received

adverse rulings.

{¶15} Because of on-going changes in family dynamics, domestic relations cases are

frequently subjected to post-decree motions. The case law is well developed regarding the facts

a movant must prove in order to obtain a modification of orders relating to issues involving

custody, visitation, and child support. The mere filing of a motion to modify does not guarantee

success, but it does entitle the movant to the opportunity to be heard. Tracie was deprived of that

opportunity when the trial court did not consider the merits of her motions. In this case, because

Tracie was accorded no opportunity to be heard on her motions scheduled for hearing, the trial 8

court erred when it denied, and in fact dismissed, her outstanding motions. Tracie’s third and

fifth assignments of error are sustained.

ASSIGNMENT OF ERROR I

THE TRIAL COURT ERRED BY FAILING TO CONSIDER THE FACTORS IN R.C. 3109.051(D) BEFORE RULING ON [TRACIE’S] MOTION TO MODIFY PARENTING TIME.

ASSIGNMENT OF ERROR II

THE TRIAL COURT ERRED BY FAILING TO CONDUCT AN INDEPENDENT REVIEW OF THE MAGISTRATE’S DECISION.

ASSIGNMENT OF ERROR IV

THE TRIAL COURT ERRED BY FAILING TO FOLLOW LOC. D.R.R. 14.03 TO [TRACIE’S] PREJUDICE.

{¶16} Because our resolution of the third and fifth assignments of error is dispositive,

the remaining assignments of error have been rendered moot and we decline to address them.

See App.R. 12(A)(1)(c).

III.

{¶17} Tracie’s third and fifth assignments of error are sustained. This Court declines to

address the remaining assignments of error. This matter is reversed and the cause remanded for

further proceedings consistent with this opinion.

Judgment reversed, and cause remanded.

There were reasonable grounds for this appeal. 9

We order that a special mandate issue out of this Court, directing the Court of Common

Pleas, County of Summit, State of Ohio, to carry this judgment into execution. A certified copy

of this journal entry shall constitute the mandate, pursuant to App.R. 27.

Immediately upon the filing hereof, this document shall constitute the journal entry of

judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the

period for review shall begin to run. App.R. 22(C). The Clerk of the Court of Appeals is

instructed to mail a notice of entry of this judgment to the parties and to make a notation of the

mailing in the docket, pursuant to App.R. 30.

Costs taxed to Appellee.

DONNA J. CARR FOR THE COURT

MOORE, P. J. CONCURS.

BELFANCE, J. CONCURRING.

{¶18} This case highlights the challenges that arise when parties undertake to advocate

for themselves pro se. In order to assist pro se litigants, form motions are available that allow

pro se litigants to file motions. These forms contain boxes that can be checked for identifying

the purpose of the motion. The form also contains a “notice of hearing” section. Pro se litigants

do not set forth any arguments concerning the merits of the motions. Thus, a trial court must

necessarily conduct a hearing on pro se motions given that it is impossible to decide the merits of

these motions on their face and the form itself contains a provision for a hearing. In this case, 10

Ms. Wintrow filed a form motion to modify. She also filed a motion for shared parenting, which

is substantively different from the modification motion because such a motion seeks an

allocation of parental rights as opposed to only a modification of existing companionship. The

matters were properly scheduled for a hearing, and, under the circumstances, I agree that a

hearing on the merits should have occurred.

APPEARANCES:

SUSAN K. PRITCHARD, Attorney at Law, for Appellant.

HEATHER R. JOHNSTON, Attorney at Law, for Appellee.